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A recent 4th U.S. Circuit Court of Appeals decision � a ruling invalidating a regulation barring permanent residents from asking the Bureau of Immigration Appeals to reopen their case after they’ve been deported � could affect thousands of other cases and spark similar legal challenges in other circuits. The plaintiff in the case, Tunbosun Olawale William, a Nigerian native and permanent legal resident of the United States, asked the Bureau of Immigration Appeals to reopen his case after his criminal conviction was vacated. The BIA rejected his request because he was already outside the United States. William v. Gonzales, No. 06-1284 (4th Cir. 2007). In a recent ruling by Judge Dennis W. Shedd, the court agreed with William’s attorneys, who argued that the underlying law allowing aliens to file one motion to reopen immigration applies to aliens inside and outside the United States. “We find that [the statute] unambiguously provides an alien with the right to file one motion to reopen, regardless of whether he is within or without the country,” Shedd wrote. Shedd vacated the BIA’s order and remanded it for review consistent with the opinion. Craig Margolis, a Washington-based white-collar criminal defense attorney at Houston’s Vinson & Elkins who did pro bono work on the case for the American Immigration Law Foundation, said the outdated regulation could affect many other aliens who are now outside the United States but want their immigration cases reheard. “Presumably there are thousands of aliens who may have other circumstances that would allow them to have their removal reversed,” Margolis said. U.S. Department of Justice spokesman Charles Miller declined to comment on the case because the matter is “still under review” and the agency is weighing its next step. ‘Entire class’ affected The decision affects “an entire class of permanent residents” who are outside the United States but can make a legal case to return, agreed Amy Maldonado Tehauno, an immigration lawyer at Houston-based Tehauno & Associates. “This opinion paves the way for people who have lost their residence and there was a change in circumstances,” Tehauno said. “Those people have an avenue to get back their original permanent residence.” There are quite a few people outside the United States who want to reopen their immigration cases, said Beth Werlin, a litigation clearinghouse attorney for the American Immigration Law Foundation. “Many people who are deported are pro se, and figuring out how to file motions or appeals outside the country is quite challenging,” William said. Immigration lawyers are increasingly mounting legal challenges to regulations tied to immigration laws, said Brent Renison, an immigration lawyer with Parrilli Renison in Lake Oswego, Ore. “Attorneys have been finding that there are big holes in the government’s regulations with respect to certain situations like this,” Renison said. “This attorney rightfully questioned whether they even had the authority to pass a rule.” Other circuits, other battles Renison anticipates that lawyers in other circuits will bring similar cases. A February 9th Circuit decision remanded a case to the BIA involving a Chinese national who was lawfully deported, but returned to the United States illegally and filed a motion to reopen his deportation case. The court ruled that the regulation barring aliens outside the United States from requesting a reopening of their immigration case didn’t apply to the situation. Lin v. Gonzales, 473 F.3d 979 (9th Cir. 2007). A June decision in the 1st Circuit denied a deported alien’s request to overturn the BIA refusal to reopen his immigration case after his criminal conviction was vacated, but the plaintiff in that case is filing for rehearing. Pena-Muriel v. Gonzales, 489 F.3rd 438 (1st Cir. 2007). Margolis said the 1st Circuit case shows “a little bit of a circuit split,” but he noted that the Pena-Muriel lawyers used a different argument than in the William case. In the Pena-Muriel case, the plaintiff argued that the Illegal Immigration Reform and Immigrant Responsibility Act, which took effect in 1996, made amendments to the immigration laws that nullified the regulation barring aliens outside the United States from filing motions to reopen their cases.

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